John David Simeoni v Rachael Wanjiku Gichira & The Chief Land Registrar

c) THAT permanent preservatory defendant orders orders herein of do injunction issue restraining and/or to the 1st her, either by herself, her agents, representatives, assignees and/or servants or whomsoever claiming title on her behalf from entering into and/or trespassing, felling trees, putting up structures, pouring sand, bricks and other building materials, farming, selling, disposing of, or doing any wasteful act on all the parcels of land known as L.R Nos. 19508, 19509, and 19510, located in the Maanzoni area within Machakos County, pending the hearing and determination of the main suit. d) THAT production orders do issue to the defendants to produce and avail all the original documents that facilitated the transfer of the suit properties, including but not limited to, the original Land Titles, Green and White Cards, any purported Sale Agreements, proof of payment of any purported consideration, Consents, Land Rates and Rents Clearance Certificates, Transfer Forms, Valuation Reports and Stamp Duty receipts, at the first instance. e) That eviction orders do issue against the 1st defendant, her agents, employees, servants and/or representatives and other persons acting under LC E097/25 RG her authority, to vacate the 2

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aforementioned suit premises pending the hearing and determination of the instant suit. f) That upon this Honourable Court granting the above or any other Orders, the Court do direct the Officer Commanding Station (OCS) Machakos Police Station with further reinforcements from the Inspector General National Police Service as may be necessary and sufficient, to supervise the enforcement of such Orders and the maintenance of law and order to protect and safeguard the applicant's constitutional right to property under Article 40 of the Constitution of Kenya, 2010. g) That the costs of this application be borne by the defendants. 2. The motion is supported by the grounds set out in the body of the motion and the supporting affidavit of the plaintiff, sworn on 30 July 2025. He makes several averments. In brief, the plaintiff originally owns three parcels of land in Machakos County, namely L.R. Nos. 19508, 19509 and 19510 (suit properties). He entered into a one-year lease agreement with the 1st defendant for farming. The plaintiff surrendered the land titles for the suit properties to the 1st defendant as security for a business loan, believing they were required for that purpose. The 1st defendant failed to pay rent or share profits and refused to return the titles. LC E097/25 RG 3

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3. Despite requests to vacate, the 1st defendant remained on the suit properties. In July 2025, the plaintiff discovered the land had been fraudulently transferred to the 1st defendant, allegedly in cahoots with the 2nd defendant. The plaintiff maintains that he never authorised any sale or transfer. Among some of the documents he presented were copies of title documents for L.R. Nos. 19508 and 19509, which were previously registered in his name and are now registered in the 1st defendant’s name. 4. Through a lengthy replying affidavit deposed on 22 September 2025, the 1st defendant challenges the motion. She makes several statements. Succinctly, the application before the court misrepresents facts and omits important information with the intent to mislead. She is the registered owner of properties LR Nos. 19508 and 19509, having lawfully purchased them from the plaintiff and completed all transfer procedures. She has taken possession, invested in improvements, and paid all land rates since 2023, with the plaintiff's knowledge. 5. She contends that being compelled to produce documents at this stage is unfair, infringes on the right to a fair trial, and improperly shifts the burden of proof. She also states that the request for eviction orders is excessive and would amount to granting final relief before the main case is heard. She presented copies of the alleged sale agreement and title LC E097/25 RG 4

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documents for LR Nos. 19508 and 19509, mpesa statements ostensibly showing some payments to the plaintiff, transfer instruments, valuation for stamp duty, rates clearance certificates and alleged developments on LR Nos. 19508 and 19509. 6. In a brief rejoinder, the plaintiff swore a further affidavit on 12 February 2026. He makes several assertions and reiterates his earlier statements. In summary, he disputes any sale or transfer of property to the 1st defendant, asserting that no contract was ever formed and describing the alleged sale agreement dated 6th June 2023 as a forgery. He states that the law firm of Ms. Kariuki E. & Company Advocates, which purportedly prepared the agreement, was a stranger, and pleads that the advocate involved be crossexamined. 7. Moreover, the alleged mpesa and bank transactions cited by the 1st defendant pertained to payments for water bills or the 1st defendant's workers and farming expenses, not consideration of the purchase price. He challenges the authenticity and relevance of receipts and invoices presented as annexures, citing missing details and lack of signatures. He submitted copies of mpesa statements and police occurrence book records. LC E097/25 RG 5

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8. When this matter came up for hearing, Mr. Kuria, for the 2nd defendant, informed the court that he would not be participating in the application. In consequence, and as directed by the court, the plaintiff’s submissions dated 18 April 2026 were filed by Ms. Musyoka & Mutinda Advocates & Co. Advocates. As for the 1st defendant’s counsel, although Ms. Yator informed the court that she had filed written submissions, it appears there was an oversight on her part, as none are on record. Accordingly, having reviewed the motion, its grounds, affidavits, annexures and plaintiff’s submissions, the ensuing issues that require resolution are: a) Whether permanent orders of injunction and mandatory orders of eviction are available to the plaintiff at an interlocutory stage. b) Whether the orders seeking discovery and production of documents by the defendants are premature. And they shall soon be addressed sequentially in this court’s analysis and determination. a) Whether final orders of permanent injunction and eviction are available to the plaintiff at an interlocutory stage. LC E097/25 RG 6

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9. In this instance, the plaintiff has sought permanent injunctive relief and eviction against the defendants. In the circumstances, Order 40 Rule 1 of the Civil Procedure Rules (CPR), which governs temporary injunctive orders, and the principles of temporary injunction enunciated in Giella v. Cassman Brown & Co. Ltd [1973] EA 358 and reiterated in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment), all of which have been relied upon by the plaintiff, are misplaced. It is unfortunate that the plaintiff’s submissions do not address the nature of these final orders. 10. Significantly, these final orders of permanent injunction and eviction are also sought in paragraphs (f) and (g) of the plaintiff’s plaint dated 30 July 2026. In other words, the plaintiff is seeking final orders at an interlocutory stage. It is settled law that a mandatory injunction is granted in clear cases and where exceptional circumstances subsist. Guidance on this is derived from Mugenda & another v Okoiti & 4 others [2016] KECA 663 (KLR), which held thus: “Nowhere in the ruling does the trial judge give reasons for granting final orders at the interlocutory stage; no special circumstances have been explained to warrant the grant of final orders and the balance of convenience LC E097/25 RG 7

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and question of irreparable injury have not been addressed. In our view, then, the ruling of 18th December 2015 does not pass the persuasive Indian threshold and criteria for grant of final orders at the interlocutory stage. Applying the decisions of this Court in Vivo Energy Kenya Limited -v- Maloba Petrol Station Limited & Kipkebut Naftali 3 Others (2015) t/a Riverside Ogola (2009) eKLR and Stephen Lodge and Rooms eKLR it has often -v- been stated that an order which results in granting of a major relief claimed in the suit ought not to be granted at an interlocutory stage.” 11. A similar position was taken by the appellate court in Joseph D. K. Kimani & Another v Simon Chege Kamangu [2016] KECA 263 (KLR) when it held: “With regard to the grant of a mandatory injunction, the test is correctly set out in Vol. 24 Halsbury's Laws of England 4th Edition, Paragraph 98, thus: "A mandatory injunction can be granted on an interlocutory application as well as at the hearing, LC E097/25 RG but, in the absence of special 8

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circumstances it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff... a mandatory injunction will be granted on an interlocutory application". Also in Locabail International Finance Ltd -vAgroexport and Others [1986] 1 All ER 901, at page 901, it was stated: "A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly LC E097/25 RG 9

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been granted, that being a different and higher standard than was required for a prohibitory injunction". Our courts have approved the above principles over time. See for instance Belle Maison Limited v- Yaya Towers Limited [HCCC No. 2225 of 1992] (UR), The Ripples Limited -v- Kamau Mucuha [HCCC No. 4522 of 1992] (UR), Malindi Air Services Ltd. -v- Halima Abdnoor Hassan (C.A. 202 of 1998), (UR) and Kenya Breweries Limited & Another -v- Washington Okoyo, [NAIROBI C.A. NO. 332 OF 2000] (UR).” 12. The case before this court is not straightforward. Although the plaintiff has alleged fraud by the 1st defendant in relation to the acquisition of the suit properties, the 1st defendant contends that she is a purchaser for value and not a lessee of some of them. It appears that both the plaintiff and the 1st defendant are in occupation of the suit properties, or some of them, purportedly by virtue of an alleged romantic relationship or an alleged agreement, whether oral or written, or through the registration of LR Nos. 19508 and 19509 in the 1st defendant’s name. 13. Consequently, a hearing on the merits will be necessary to examine and assess the veracity of these claims and to test LC E097/25 RG 10

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the evidence, particularly regarding how the 1st defendant came to be a registered owner of some of the suit properties. Furthermore, no exceptional circumstances warrant granting final reliefs at this interlocutory stage. Accordingly, the court finds that granting final orders at this interim stage is unwarranted. It is also found that the most appropriate course of action is to maintain the status quo, thereby preserving the interests in the suit properties. b) Whether the orders seeking discovery and production of documents by the defendants are premature. 14. The plaintiff’s relief under this head is premised on Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, which provide for the just, expeditious and efficient resolution of civil disputes (the overriding objective) and the duty of all parties in the dispute to assist the Court to further the overriding objective and to participate in the processes of the Court. Nonetheless, the plaintiff did not address this issue in his submissions. Conversely, the 1st defendant contends that the prayer is premature because a notice to produce has not been issued in accordance with the law. LC E097/25 RG 11

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15. Under Section 22 (a) of the Civil Procedure Act, the court is vested with the authority to make discovery orders and similar directives. The Section states as follows: “Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party— (a)make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b)issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c)order any fact to be proved by affidavit.” 16. With regard to prevailing jurisprudence, the Court of Appeal in ABN Amro Bank N.V v Kenya Pipeline Company Limited [2019] KECA 499 (KLR) expounded on the process of discovery as follows: - LC E097/25 RG 12

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“[36] The manner of discovery, or disclosure, is usually by information way to of a party providing that another, and should party a disclose the existence of such a document to the other party, then the other party, has, as a general rule, proposition is England Civil the right to set out in Halsbury's Laws of (Volume (2015), Procedure inspect 11 it. This paras 1–503; Volume 12 (2015),) as follows: (viii) Disclosure of Documents 1020. Disclosure; in general, The process formerly known as 'discovery of documents' is now known, for the purposes of proceedings to which the Civil Procedure Rules apply, as 'disclosure'. A party discloses a document by stating that it exists or has existed; and a party to whom a document has been disclosed normally has a right to inspect that document. A party's duty to disclose documents is limited to documents which are or have been in his control and the duty continues until the proceedings are concluded… [39] From ample persuasive authority that we have cited above, it is clear to us that once a party has referred to a document within its own LC E097/25 RG 13

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pleadings with a view to strengthening its case, then the opposing party has a right to inspect those documents.” 17. The persuasive decision of Oracle Productions Limited v Decapture Limited & 3 others [2014] KEHC 8658 (KLR), with which this court concurs, held as follows: “Pre-trial discovery is so central to litigation that the entire order 11 of the Civil Procedure Rules 2010 has been substantially devoted to it, including sanctions for non-compliance. Orders 4 and 7 now require parties to file and serve documentary Order 14 evidence empowers production, with their the court impounding and pleadings. to order for return of documents.” 18. This decision confirms that the primary goal of discovery is to create a fairer litigation process, expedite hearings, reduce costs, and help parties assess the case before trial. This purpose is well summarised in Halsbury’s Laws of England, Vol 13, paragraph 1, which states: “The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in LC E097/25 RG 14

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appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation.” 19. Further, Halsbury's Laws of England (Volume 85 (2012) (online edition) at para 655 states; “Any party to a cause or matter may apply to the judge for an order directing any party, other than the proper officer of the Crown, to make discovery on oath of any documents which are or have been in his possession or power relating to any matter in question in the cause or matter. Thereupon the judge may make such order as he thinks fit, but discovery may not be ordered unless he is of opinion that it is necessary either for disposing fairly of the cause or for saving costs.” 20. The applicant seeks discovery against the state (2nd defendant) LC E097/25 RG and a private individual (1st defendant). 15

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Concerning the discovery against the 1st defendant and in accordance with ABN Amro (Supra), the court finds that this relief is premature, as the 1st defendant has not yet filed a defence or a list of documents. 21. In this court’s humble view, only upon assessment of the 1st defendant's documents, which are yet to be filed, can this court reach a just determination on the issue of discovery and production. Additionally, some of the documents the plaintiff seeks discovery of form part of the court record as annexures to the 1st defendant’s replying affidavit. Since the plaintiff alleges fraud and forgery concerning these documents, and given that the case is still in the early pre-trial stages, he retains the option to submit them to a document examiner for expert examination, which he can then eventually tender as evidence. 22. Respecting the discovery against the state and as held in Republic v Public Procurement Administrative Review Board; County Government of Laikipia & another (Interested Parties); Pelt Security Services Ltd (Ex parte) [2018] KEHC 2068 (KLR), which this court concurs with, if a government entity has the mandate to perform the tasks entrusted to it by the legislature without contravening the will of Parliament, then a court will not interfere with the decision and/or mandate. LC E097/25 RG 16

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23. Further, Section 5 of the Access to Information Act sets out an elaborate procedure for the disclosure of information by public entities. In this case, there is no record that the plaintiff ever sought information from the 2nd defendant concerning the suit properties and was denied; even if so, they have not approached the Commission on Administrative Justice for a review of the land office’s decision. When dealing with the issue of access to information, the Supreme Court, in Aluochier v Senate & 2 others [2025] KESC 59 (KLR), paragraph 67 of its decision, held that a party seeking public information must follow the prescribed statutory procedure and exhaust the available remedies before filing a case before the court. 24. Therefore, this court finds the relief against the 1st defendant premature while that against the 2nd defendant inappropriate. 25. In light of the aforementioned reasons and findings, and considering that all these applications are preliminary, costs shall be the cause. Furthermore, it is essential that this matter be scheduled for pre-trial directions. Therefore, this court issues the following final orders: a) THAT pending the hearing and determination of the main suit herein, the status quo that is currently prevailing on L.R No. 19508 (IR No. LC E097/25 RG 17

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72822), L.R No. 19509 (IR No. 85903) and L.R No. 19510 within Machakos Municipality shall be maintained. b) THAT status quo over L.R No. 19508 (IR No. 72822) and L.R No. 19509 (IR No. 85903) means there shall be no sale, transfer, dealings, charge, or subdivision of L.R No. 19508 (IR No. 72822) and L.R No. 19509 (IR No. 85903) within Machakos Municipality and that there shall be no evictions, interference with occupancy or further developments by either the plaintiff or 1st defendant by themselves, their family members, officials, employees, lessees, servants, agents, representatives, assigns, or any other persons acting under their authority. c) THAT status quo over L.R No. 19510 means there shall be no sale, transfer, dealings, charge, or subdivision of L.R No. 19510 within Machakos Municipality, and that there shall be no evictions of the plaintiff or interference with occupancy or further developments by the 1st defendant, by herself, her family members, officials, employees, lessees, servants, agents, representatives, assigns, or any other persons acting under their authority. d) THAT the parties are directed to fully comply with Order 11 of the Civil Procedure Rules within LC E097/25 RG 18

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60 days hereof and file indexed and paginated trial bundles. e) THAT from now henceforth, no other or further applications shall be entertained by the court unless with leave. f) THAT a mention date shall be given before Mavoko ELC for purposes of pretrial directions. g) THAT the matter is transferred to Mavoko ELC. h) THAT costs shall be in the cause. Orders accordingly. Delivered and Dated at Machakos this 6th day of October, 2026. HON. A. Y. KOROSS JUDGE 06.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Miss Muthoki holding brief for Miss Mutinda for plaintiff/applicant. LC E097/25 RG 19

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Mr. Kamau holding brief for Mr. Wanjohi for 1 st defendant. LC E097/25 RG 20

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